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Decision in case 236/2019/TE on the European Commission’s decision not to disclose documents related to the EU’s participation in the environment committee of the UN International Civil Aviation Organisation

The case concerned a refusal by the European Commission to give an MEP public access to documents submitted by the Commission to the environment technical committee of the United Nations International Civil Aviation Organisation (ICAO). ICAO develops standards and recommended practices and policies in the civil aviation sector. Many of these standards and practices are later incorporated into EU law.

The Ombudsman considers the transparency of international rule making a matter of crucial importance, particularly where such rules are subsequently incorporated into EU law and become legally binding in all Member States. This is arguably even more important in an area such as international civil aviation, given the implications for transport safety and environmental protection. The adoption of standards in such an area demands public scrutiny and, thus, transparency.

As regards the particular documents in this inquiry, the Ombudsman found, however, that the Commission was legally justified in refusing public access. At an inspection, the Ombudsman’s inquiry team confirmed that the documents were not stand-alone Commission-authored documents, but rather co-authored by the European Commission, several EU Member States and third countries. They were then submitted to ICAO as the “European position”.

In line with the EU law on public access to documents, the Commission consulted the co-authors about the request for access and a number of the non-EU countries objected to disclosure. The Ombudsman therefore considers that it was reasonable for the Commission to consider that disclosing the documents could undermine international relations, between the EU and these third countries.

The Ombudsman also accepted the Commission’s argument, in this context, that maintaining a relationship of trust with these third countries made it more likely that they would join with the EU in forming a European position at ICAO, thus strengthening the influence of the EU in ICAO.

The Ombudsman therefore closed the inquiry with a finding of no maladministration.

Background to the complaint

1. The case concerned a refusal by the European Commission to give an MEP public access to documents submitted by the Commission to the environment technical committee of the United Nations International Civil Aviation Organisation (ICAO). ICAO develops standards and recommended practices and policies in the civil aviation sector. Many of these standards and practices are later incorporated into EU law.

Context

2. ICAO is a United Nations (UN) agency, which manages the administration and governance of the Convention on International Civil Aviation (referred to as the ‘Chicago Convention’). ICAO develops Standards and Recommended Practices (SARPs) and policies in the civil aviation sector. All EU Member States are contracting parties to ICAO. The European Union has observer status at ICAO.

3. SARPs are prepared by ICAO’s technical committees and are adopted by the ICAO Council, which consists of 36 members. The Committee on Aviation Environmental Protection (CAEP) is the technical committee that assists the ICAO Council in adopting new SARPs related to aviation environmental impact such as aircraft noise and emissions.

4. CAEP has 25 members and 17 observers.[1] Members and observers to CAEP have to sign a use agreement in order to access the CAEP secure IT portal, on which drafts, working papers and comments are shared.

5. The EU and all EU Member States are also members of the European Civil Aviation Conference (ECAC). ECAC has 44 members in total.  A number of non-EU countries (for example, Albania, Georgia, Norway, Switzerland, Turkey and Ukraine) are members.[2]

6. ECAC states that it serves as a unique European forum for discussion of civil aviation and states that close co-operation with the European Commission is of fundamental importance to it as it provides vital links to the European Union's air transport policies for all non-EU ECAC Member States. Representatives of the European Commission are systematically invited to participate in ECAC meetings in the various fields of the organisation's activities.  ECAC has a special working relationship with ICAO and represents the interests of its Member States at ICAO Assemblies and other special events.

The complaint

7. The complainant is a Dutch Member of the European Parliament (MEP).

8. On 26 June 2018, the complainant submitted a parliamentary question to the Commission,[3] in which he asked for clarification as to whether, in determining the European position regarding the establishment of an international CO₂ standard for aircraft at ICAO, all relevant stakeholders (industrial and environmental) were treated in an equal manner. He also asked whether the Commission intends to make public all working papers submitted to CAEP.

9. On the same day, the complainant requested the Commission to give him public access[4] to seven working papers submitted to CAEP meetings in February 2016, December 2016, September 2017 and June 2018, setting out the “European views” on issues such as aeroplane CO₂ emissions standards, supersonic aircraft noise and supersonic engine emissions.

10. On 28 August 2018, the Commission, after consulting with third countries, ICAO and EU Member States,[5] refused public access to the requested documents based on a justification set out in the EU law on public access to documents (Regulation 1049/2001). The justification in question concerns the protection of the public interest as regards international relations.[6]

11. On 11 September 2018, the complainant asked the Commission to review its decision refusing public access. The complainant argued that other observers to CAEP do publish their working papers, either fully or partially, despite being subject to the use agreement.

12. On 18 September 2018, the Commission replied[7] to the complainant’s written parliamentary question, stating that, in cooperation with the European Civil Aviation Conference, it has procedures in place to ensure transparency and the consultation of stakeholders. Regular meetings with stakeholders would be organised ahead of CAEP meetings. European CAEP members, in line with the legislation of their Member States, would also consult their stakeholders and, in addition, share their working papers with all stakeholders represented in CAEP. Papers submitted to CAEP meetings are part of the secure portal and, therefore, subject to its use agreement.

13. On 26 October 2018, the Commission adopted its review decision on the complainant’s public access to document request. Therein, it confirmed its initial decision not to grant access to the requested documents in order to protect the public interest as regards international relations[8] and an ongoing decision-making process[9].

14. Dissatisfied with the Commission’s reply, the complainant turned to the Ombudsman on 5 February 2019.

The inquiry

15. The Ombudsman opened an inquiry into the aspect of the complaint, which concerns the refused public access to the seven documents setting out the “European views”, as requested by the complainant.

16. In the course of the inquiry, the Ombudsman’s inquiry team met with relevant Commission staff and inspected the requested documents. The Ombudsman also received the complainant’s comments on the inspection report.

Arguments presented to the Ombudsman

Arguments presented by the Commission

17. The Commission refused public access to the requested documents on the basis of the exceptions in Regulation 1049/2001, which concern the protection of the public interest as regards international relations[10] and the protection of the decision-making process[11].

18. The Commission explained that CAEP is composed of international experts from members and observers, who, in order to do their work, get access to confidential information (such as product-related data from industry) via the committee’s secure portal. To access the secure portal, all experts need to sign a use agreement.

19. The Commission noted that ICAO has repeatedly insisted on the confidentiality of the documents exchanged via the CAEP secure portal and that disrespect of the confidentiality provisions could lead to the suspension of observer or membership status. In dealing with the complainant’s access-to-document request, the Commission consulted ICAO, which replied that the Commission’s disclosure of the requested documents would affect the relationship of trust between the EU and ICAO, requiring a re-examination of ICAO’s communications with the EU across the different forums and groups within ICAO. Therefore, the Commission takes the view that the disclosure of the requested documents would seriously harm the public interest as regards the EU’s international relations with ICAO.

20. The Commission further argued that the disclosure of the requested documents would seriously undermine the internal decision-making process of the Commission. Many documents produced by CAEP would later on be subject to international negotiations in the ICAO Council, which adopts the SARPs. At the time of its review decision, negotiations were ongoing within the ICAO Council on standards with regard to engine emissions, noise and a global market based measure to reduce CO₂ emissions. Furthermore, the Commission considers that there would be a clear and non-hypothetical risk that, if it were to disclose sensitive information submitted by industry, it might not receive similar information in the future. As such, information is essential, the Commission would be prevented from negotiating effectively. 

21.  At the inspection meeting with the Ombudsman’s inquiry team, the Commission further explained its role as an observer to CAEP and the ICAO Council and the nature of the documents requested by the complainant.

22. For the technical discussions in CAEP meetings, the Commission clarified that it does not formulate ‘EU positions’. Working papers, submitted by CAEP experts, setting out “European views”, are drafted by experts from the ECAC.

23. The seven “European views”, to which the complainant requested public access, are thus not ‘EU positions’. Rather, they are ECAC positions, co-authored by the EU, as represented by the European Commission, several EU Member States and third countries. In line with Regulation 1049/2001, the Commission consulted the EU Member States concerned, the third countries concerned and ICAO when dealing with the complainant’s access-to-documents request.[12] Most of the consulted third parties informed the Commission of their view that disclosure would undermine international relations.

24. As regards the use agreement for the CAEP secure portal, the Commission confirmed its view that the agreement covers the documents that experts themselves draft and upload to the secure portal. While it is aware that another observer to CAEP, the International Coalition for Sustainable Aviation, has published a version of its submissions to CAEP on its own website, the Commission is not aware that CAEP has been asked for permission or has agreed to the disclosure of these documents.

25. Finally, the Commission stated that, for meetings of the ICAO Council, it does prepare an “info note” setting out the EU position that is endorsed by the EU Council in accordance with EU Treaties and institutional rules. The responsible Working Party on Aviation in the Council and the European Parliament are regularly informed about the state of negotiations in the ICAO Council.[13]

26. In response to the complainant’s concern that industrial stakeholders have disproportionate access to EU submissions, the Commission set out that it consults a wide range of stakeholders in preparation of Europe’s negotiating position, including governments, industry and non-governmental organisations. In the context of these negotiations, contacts with Airbus, as the biggest producer of airplanes in Europe, would be normal. The Commission also notes that a number of stakeholders, including Airbus, participate as observers in CAEP.

Arguments presented by the complainant

27. The complainant considers that the process for deciding the EU negotiating position in ICAO lacks transparency, in that it does not meet the most basic form of good administrative behaviour. He is concerned that inappropriate access is granted to certain industry actors, while the public and elected institutions such as the European Parliament are left out. He therefore takes the view that EU papers submitted to CAEP must be made public at all stages of the negotiation process.

28. The complainant further argues that the Commission’s claim that it does not formulate ‘EU positions’ for the technical discussions in CAEP meetings is contradicted by e-mails exchanged between the Commission and Airbus, which clearly show that the Commission is, on an equal basis with and alongside EU Member States, engaged in establishing an agreed position.[14] Furthermore, the complainant considers it inaccurate to portray the Commission as a mere observer at ICAO, as the adoption of measures to regulate aviation’s climate impact falls under EU competence. The complainant refers to case law of the Court of Justice of the EU, which establishes that, where an issue touches on Union competence, the EU and its institutions are empowered to adopt a common position.[15]

29. At the same time, even if it was true that the Commission is not formulating EU positions for CAEP meetings, but is only facilitating them, the Commission would still be bound by its obligations under Regulation 1049/2001. In addition, the complainant does not see why the use agreement of the CAEP secure portal would take precedence over Regulation 1049/2001. He argues that not challenging the use agreement’s compatibility with Regulation 1049/2001 could set a precedent whereby the Commission would be able to avoid its obligations under EU law by entering into such agreements.

30. In support of his arguments, the complainant puts forward that the International Coalition for Sustainable Aviation, another observer to CAEP, as well as the US administration, a member of CAEP, have made publicly available versions of their working papers submitted to CAEP.

The Ombudsman's assessment

Preliminary remarks

31. The Ombudsman considers the transparency of international rule making a matter of crucial importance, particularly where such rules are subsequently incorporated into EU law and become legally binding in all EU Member States. This is arguably even more important in an area such as international civil aviation, which has significant implications for transport safety and environmental protection. The adoption of standards in such an area demands public scrutiny and, thus, transparency.

32. The Ombudsman also points out that documents held by the European Commission on ICAO aeroplane CO₂ emissions standards, supersonic aircraft noise or supersonic engine emissions qualify as “environmental information” under the EU Aarhus Regulation.[16] The EU Aarhus Regulation aims at ensuring that environmental information is progressively made available and disseminated to the public in order to achieve its widest possible systematic availability and dissemination. The purpose of access to this information is to promote more effectively public participation in the decision-making process, thereby increasing the accountability of decision-making and contributing to public awareness and support for the decisions taken.[17]

33. In this spirit, the EU Aarhus Regulation provides that the exceptions in Regulation 1049/2001, which state that access to a document shall be refused if disclosure would seriously undermine the protection of international relations[18] or an institution’s decision-making process[19], have to be interpreted in a restrictive way as regards environmental information[20]. The public interest served by disclosure of the requested information should be taken into account[21], thereby aiming for greater transparency of environmental information.

34. The Ombudsman furthermore notes the special status attributed to “legislative documents” under Regulation 1049/2001, which shall be made directly accessible[22] to the greatest possible extent[23]. The special status attributed to legislative documents shall ensure that citizens are able to scrutinise and be made aware of all the information forming the basis for EU legislative action, allowing them to effectively exercise their democratic rights[24].

35. The Court of Justice of the EU has, in 2018, broadened the understanding of documents that should benefit from the wider access granted to “legislative documents”.[25] The Court held that such wider access should also be granted to documents, in that case to impact assessments, which are not, strictly speaking, drafted by an institution when acting in its legislative capacity[26]. To come to that conclusion, the Court examined the purpose of the documents in question, which it considered to lie in informing the Commission’s legislative proposal. The Court concluded that, as impact assessments contain “information constituting important elements of the EU legislative process[27], their disclosure is “likely to increase the transparency and openness of the legislative process as a whole[28]. This, the Court inferred, would “enhance the democratic nature of the European Union by enabling its citizens to scrutinise that information and to attempt to influence that process[29]. Therefore, the reasons underlying the principle of a wider access to legislative documents are also valid for documents drawn up in the context of an impact assessment procedure[30].

36. The Ombudsman takes the view that an analogous assessment should result in documents drawn up in the context of adopting ICAO SARPs, which may decisively influence the content of EU legislation[31], being subject to the wider transparency standards applicable to legislative documents.

37. In view of these considerations, the Ombudsman considers that documents held by the Commission and drawn up in the context of decision-making on ICAO SARPs should, as a matter of principle, benefit from the wider public access granted to environmental information and legislative documents under Regulation 1049/2001.

Public access to the requested documents

38. The Ombudsman considers it very doubtful that the Commission could refuse access to documents drafted by it and which could be properly understood to be the EU position on how civil aviation should be regulated, in particular when the regulated issues concern the environmental impact of civil aviation.

39. At the inspection meeting with Commission representatives, the Ombudsman’s inquiry team confirmed that all seven “European views” to which the complainant requested public access were in fact ECAC documents representing the views of ECAC and its 44 members. They were not Commission documents, setting out the EU view. Rather, they were documents co-authored by:

· the European Commission working with ECAC;

· several EU Member States working in ECAC; as well as

· a number of non-EU ECAC members.

40. The Ombudsman therefore takes the view that the requested documents are not ‘EU positions’, but are rather the views of ECAC.

41. Regulation 1049/2001 sets out that “[a]s regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 [of Article 4] is applicable, unless it is clear that the document shall or shall not be disclosed”.[32]

42. The Ombudsman notes that the Commission, in line with the above-mentioned provisions in Regulation 1049/2001, consulted the co-authors of the requested seven “European views” when dealing with the complainant’s access-to-documents request. The Ombudsman received copies of these consultations (the Commission’s requests and the third parties’ replies) and confirmed that the majority of the consulted third parties, both EU Member States and third countries, objected to the disclosure of the requested documents. In doing so, they referred to the need to protect international relations.

43. The Commission and EU Member States are bound by EU law. This includes the obligations under EU law regarding the transparency of EU decision-making (as set out in the Treaties and Regulation 1049/2001) and the protection of the environment. Whenever an EU Member State requests the Commission not to release a document in the possession of the Commission, the Member State’s request must be consistent with these obligations. As such, the Ombudsman is not convinced that the opposition of EU Member States to the disclosure of the ECAC documents is a justification for not disclosing the documents.

44. However, a number of ECAC members who are not EU Member States have also objected to the disclosure of the ECAC documents they co-authored. According to the Commission, disregarding these requests could damage international relations between the EU and these non-EU ECAC members.

45. The Commission has set out in detail why it needs to maintain good relations with these non-EU ECAC members. Specifically, this (i) helps ensure that the EU remains an effective rule-maker in the broader European aviation context; (ii) is important in terms of ensuring that the EU has the backing of the 44 member ECAC, thus strengthening the EU’s negotiating position at ICAO.

46. The Ombudsman thus takes the view that, in this particular situation, and as regards the particular ECAC documents at stake in this inquiry, the Commission was legally justified to rely on the need to protect international relations when it refused to make the ECAC documents public.

47. Having said that, the Ombudsman notes that the Aarhus Convention[33], to which the EU is a party, requires its parties to promote the three pillars of the Convention in international environmental decision-making: “each Party shall promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organisations in matters relating to the environment”.[34] According to the Almaty Guidelines on promoting the application of the principles of the Aarhus Convention in international forums, this may involve “a need to adopt and structure international processes and mechanisms in order to ensure meaningful and equitable international access”.[35] The default standard, recommended in the Almaty Guidelines, is that all documents are being released publicly and exceptions to disclosure should be interpreted restrictively.[36]

48. In line with the Aarhus Convention, its Almaty Guidelines and the principles outlined in the preliminary remarks to this assessment, the Ombudsman expects the European Commission to promote actively a greater level of transparency within ECAC, ICAO and CAEP.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion.

There was no maladministration by the Commission in refusing public access to the seven requested documents.

The complainant and the Commission will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 13/09/2019

 

[1] https://www.icao.int/environmental-protection/pages/caep.aspx

[2] See https://www.ecac-ceac.org/member-states

[3] Parliamentary question of 26 June 2018 (E-003529/2018), available at: http://www.europarl.europa.eu/doceo/document/E-8-2018-003529_EN.html.

[4] In accordance with Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents (‘Regulation 1049/2001’): https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32001R1049.

[5] In line with Articles 4(4) and 4(5) of Regulation 1049/2001.

[6] Article 4(1)(a), third indent of Regulation 1049/2001.

[7] Answer to parliamentary question (E-003529/2018) on 19 September 2018, available at: http://www.europarl.europa.eu/doceo/document/E-8-2018-003529-ASW_EN.html

[8] Article 4(1)(a), third indent of Regulation 1049/2001.

[9] Article 4(3), first subparagraph, of Regulation 1049/2001.

[10] Article 4(1)(a), third indent of Regulation 1049/2001.

[11] Article 4(3), first subparagraph of Regulation 1049/2001.

[12] The third-party consultation is regulated in Articles 4(4) and 4(5) of Regulation 1049/2001.

[13] The Ombudsman understands that this EU position is publicly accessible.

[14] The e-mails are available at: https://www.transportenvironment.org/sites/te/files/Emails.pdf.

[15] Judgment of the Court of 7 October 2014 in Case C-399/12, Germany v Council, available at: http://curia.europa.eu/juris/document/document.jsf;jsessionid=72E6817D75A20EF7E287CC952422D9E5?text=&docid=158373&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=4887538.

[16] Regulation 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (‘EU Aarhus Regulation’): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32006R1367. According to Article 2(1)(d) of the EU Aarhus Regulation, environmental information is “any information in written, visual, aural, electronic or any other form on: .. (ii) Factors, such as substances, energy, noise radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment...; (iii) Measures (including administrative measures), such as policies, legislation, plans programmes, environmental agreements

[17] Judgment of the Court (Grand Chamber) of 4 September 2018, ClientEarth v Commission, C-57/16, para. 98: http://curia.europa.eu/juris/liste.jsf?num=C-57/16&language=en.

[18] Article 4(1)(a), third indent of Regulation 1049/2001.

[19] Article 4(3) of Regulation 1049/2001.

[20] Article 6(1) second sentence of Regulation 1367/2006; see also Judgment of the Court (Grand Chamber) of 4 September 2018, ClientEarth v Commission, C-57/16, para. 100: http://curia.europa.eu/juris/liste.jsf?num=C-57/16&language=en.

[21] Article 6(1) second sentence of Regulation 1367/2006; see also Judgment of the Court (Grand Chamber) of 4 September 2018, ClientEarth v Commission, C-57/16, para. 100: http://curia.europa.eu/juris/liste.jsf?num=C-57/16&language=en.

[22] Article 12(2).

[23] Recital 6.

[24] See, to that effect, judgments of the Court of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, para. 46: http://curia.europa.eu/juris/liste.jsf?num=C-39/05&language=en, and of 17 October 2013, Council v Access Info Europe, C‑280/11 P, para. 33: http://curia.europa.eu/juris/liste.jsf?num=C-280/11&language=EN.

[25] Judgment of the Court (Grand Chamber) of 4 September 2018, ClientEarth v Commission, C-57/16: http://curia.europa.eu/juris/liste.jsf?num=C-57/16&language=en.

[26] Ibid, para. 86.

[27] Ibid, para. 91.

[28] Ibid, para. 92.

[29] Ibid, para. 92.

[30] Ibid, para. 95.

[31] As the Commission stated in its proposal for a Council Decision on the EU’s position in ICAO, “[t]he acts which ICAO is called upon to adopt constitute acts having legal effects. The envisaged acts are capable of decisively influencing the content of EU legislation in the area of civil aviation”COM(2018) 19 final, p. 4: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_5261_2018_INIT&from=EN.

[32] Article 4(4) of Regulation 1049/2001.

[33] Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, on 25 June 1998 (‘UN Aarhus Convention’): https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf

[34] Article 3(7) of the UN Aarhus Convention.

[35] Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums, December 2005, point 13: https://www.unece.org/fileadmin/DAM/env/documents/2005/pp/ece/ece.mp.pp.2005.2.add.5.e.pdf

[36] Points 20 and 25.